remanded L-1A Case: Automated Payment Systems

MATTER OF E-S-USA, INC. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 15, 2016 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an automated payment systems provider, seeks to temporarily employ the Beneficiary 
as the president and chief executive officer (CEO) of its new office under the L-1A nonimmigrant 
classification for intracompany transferees. See Immigration and Nationality Act (the Act) section 
101(a)(15)(L), 8 U.S.C. § 1101(a)(15)(L). The L-1A classification allows a corporation or other legal 
entity (including its affiliate or subsidiary) to transfer a qualifying foreign employee to the United States 
to work temporarily in an executive or managerial capacity. 
The Director, Vermont Service Center, denied the petition. The Director concluded that the Petitioner 
did not establish that it has acquired sufficient physical premises to conduct its business. See 8 
C.F.R. § 214.2(1)(3)(v)(A). 
The matter is now before us on appeal. In its appeal, the Petitioner contends that it submitted evidence 
that "overwhelmingly demonstrates" that it secured physical premises sufficient for its "immediate 
purposes" during the first year. 
Upon de novo review, we will withdraw the Director's_decision and remand the petition to the Director 
for further review and entry of a new decision. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-1 nonimmigrant visa classification, a qualifying organization must 
have employed the Beneficiary in a managerial or executive capacity, or in a specialized knowledge 
capacity, for one continuous year within three years preceding the Beneficiary's application for 
admission into,the United States. Section 101(a)(15)(L) of the Act. In addition, the Beneficiary 
must seek to enter the United States temporarily to continue rendering his or her services to the same 
employer or a subsidiary or affiliate thereof in a managerial, executive, or specialized knowledge 
capacity. !d. 
The regulation at 8 C.F.R. § 214.2(1)(3) states that an individual petition filed on Form I-129, 
Petition for a Nonimmigrant Worker, shall be accompanied by: 
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Matter of E-S- USA, Inc. 
(i) Evidence that the petitioner and the organization which employed or will 
employ the alien are qualifying organizations as defined in paragraph 
(1)(1 )(ii)( G) of this section. 
(ii) Eviqence that the alien will be employed in an executive, managerial, or 
specialized knowledge capacity, including a detailed description of the 
services to be performed. 
(iii) Evidence that the alien has at least one continuous year of full-time 
employment abroad with a qualifying organization within the three years 
preceding the filing of the petition. 
(iv) Evidence that the alien's prior year of employment abroad was in a position 
that was managerial, executive or involved specialized knowledge and that the 
alien's prior education, training, and employment qualifies him/her to perform 
the intended services in the United States; however, the work in the United 
States need not be the same work which the alien performed abroad. 
The regulation at 8 C.F.R. § 214.2(1)(3)(v) further provides that if the petition indicates that the 
beneficiary is coming to the United States as a manager or executive to open or to be employed in a 
new office in the United States, the petitioner shall submit evidence that: 
(A) Sufficient physical premises to house the new office have been secured; 
(B) The beneficiary has been employed for one continuous year in the three year 
period preceding the filing of the petition in an executive or managerial 
capacity and that the proposed employment involved executive or managerial 
authority over the new operation; and 
(C) The intended United States operation, within one year of the approval of the 
petition, will support an executive or managerial position as defined in 
paragraphs (l)(l)(ii)(B) or (C) of this section, supported by information 
regarding: 
(I) The proposed nature of the office describing the scope of the entity, its 
organizational structure, and its financial goals; 
(2) The size of the United States investment and the financial ability of the 
foreign entity to remunerate the beneficiary and to commence doing 
business in the United States; and 
(3) The organizational structure of the foreign entity. 
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Matter of E-S-USA, Inc. 
II. PHYSICAL PREMISES 
The Director denied the petition based on a finding that the Petitioner did not establish that it hps 
acquired sufficient physical premises to conduct business during its first year of operation. See 8 
C.F.R. § 214.2(1)(3)(v)(A). The Director stated that it appeared that the Petitioner had made material 
changes to the record in an effort to make its asserted space appear sufficient to meet United States 
Citizenship and Immigration Services (USCIS) requirements. The Director concluded that the office 
space that the Petitioner had secured at the time of filing was not adequate for the company's four 
proposed employees during the first year. 
On appeal, the Petitioner states that the space it has acquired is sufficient for its "immediate 
purposes" to commence doing business in the United States and that the changes cited by the 
Director in response to the request for evidence were not material changes but further explanation 
and clarification as to the space it had secured. 
Upon review, we find that the Petitioner has submitted adequate evidence to establish that it more 
likely than not has acquired sufficient physical premises to house the new office. As such, the 
Director's decision will be withdrawn. 
III. U.S. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
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Although the Director's decision will be withdrawn, the record as presently constituted does not 
establish that the Beneficiary would be employed in a managerial or executive capacity, as defined at 
section 101(a)(44)(A) and (B) of the Act, within one year of an approval of the petition. 
Accordingly, we will remand the matter to the Director for further review of this issue and for the 
entry of a new decision. 
The Petitioner intends to purchase, install, and operate cash payment terminals in retail and other 
locations throughout southern Florida. . The Petitioner submitted a lengthy description of the 
Beneficiary's proposed duties as president and CEO, indicating that he would be responsible for 
formulating "strategic policies and objectives," implementing "administrative policies and 
procedures," establishing "financial goals," implementing company guidelines, quality control, 
controlling "investment of funds," supervising "cash management activities," executing "capital­
raising strategies," hiring and firing personnel, directing and managing business development, 
negotiating contracts, and approving "all manufacturers, whole sellers, vendors, ?fid suppliers." 
The Petitioner stated that the Beneficiary would act in an executive capacity at the "top of the 
hierarchical structure of the company" and that he would be involved with the "supervision and 
control of the work of other supervisory and professional employees." The Petitioner indicated that 
it would hire three employees during the first year including a financial administrative manager, a 
technical support supervisor, and an office supervisor, and it provided job descriptions for each 
proposed position. According to the Petitioner's business plan, all three employees would be hired 
immediately, and no additional staff would be added during the first year of operations. 
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Matter of E-S- USA, Inc. 
The Petitioner's business plan mentions that the Beneficiary "will be responsible for assessing 
marketing opportunities and target markets, gathering intelligence on customers and competitors, 
generating leads for possible customers and clients, and following up with sales activity." 
Upon review of the petition and the evidence of record, we conclude that the Petitioner has not 
established that the Beneficiary would be employed in a managerial or executive. capacity in the 
United States within one year of approval of the new office peti,tion. 
When examining the managerial or executive capacity of the Beneficiary, we will look first to the 
Petitioner's description of the job duties. See 8 C.F.R. § 214.2(1)(3)(ii). The Petitioner's description 
of the job duties must clearly describe the duties to be performed by the Beneficiary and indicate 
whether such duties are in a managerial or executive capacity. !d. 
While the Petitioner provided a lengthy description of the Beneficiary's proposed duties, it described 
those duties in very general terms which could apply to any executive or manager acting in any 
company or industry. For instance, the Petitioner states that the Beneficiary will be responsible for 
formulating "strategic policies and objectives," implementing "administrative policies and 
procedures," establishing "financial goals," implementing company guidelines, quality control, 
controlling "investment of funds," and managing business development. However, beyond 
indicating that the Beneficiary will be responsible for purchasing cash bill payment devices, shipping 
these devices to the United States and making them operational, all non-qualifying operational tasks, 
it has not identified the specific tasks he will perform. Reciting a beneficiary's vague job 
responsibilities or broadly-cast business objectives is not sufficient; the regulations require a detailed 
description of the beneficiary's daily job duties. Conclusory assertions regarding a beneficiary's 
employment capacity are not sufficient. The actual duties themselves will reveal the true nature of 
the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), aff'd, 
905 F .2d 41 (2d. Cir. 1990). 
Further, the Beneficiary's duty description does not include the market research, data collection, lead 
generation, and sales duties attributed to the Beneficiary in the Petitioner's business plan. For this 
reason, the list of duties provided appears incomplete and does not encompass all of the non­
qualifying sales and marketing duties the Beneficiary will perform during the first year and beyond. 
While the Petitioner intends to hire an administrative employee and employees to handle the 
technical and financial aspects of operating cash bill payment terminals, the record as presently 
constituted suggests that all other aspects of the business, including the purchase, import, 
distribution, sales, and marketing of the Petitioner's products, would be left to the Beneficiary. 
The definitions of managerial and executive capacity each have two parts. First, the Petitioner must 
show that the Beneficiary will perform certain high-level responsibilities. Champion World, Inc. v. 
INS, 940 F.2d 1533 (9th Cir. 1991) (unpublished table decision). Second, the Petitioner must prove 
that the Beneficiary would be primarily engaged in managerial or executive duties, as opposed to 
ordinary operational activities alongside the Petitioner's other employees. See Family Inc. v. USCIS, 
469 F.3d 1313, 1316 (9th Cir. 2006); Champion World, 940 F.2d 1533. Here, the Beneficiary's 
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Matter of E-S-USA, Inc. 
level of authority has been established, but additional evidence is needed to establish that his actual 
duties would be primarily managerial or executive within one year based on the provided duty 
descriptions and proposed staffing levels. 
In addition, there is also an inconsistency in the record regarding the company's proposed 
organizational structure. The Petitioner submitted an organizational chart showing that the 
Beneficiary would supervise a subordinate supervisor; however, the duty descriptions provided for 
the three proposed subordinates indicate that each employee would report directly to the Beneficiary, 
suggesting that he would likely only act as a first-line supervisor after the first year. A managerial or 
executive employee must have authority over day-to-day operations beyond the level normally 
vested in a first-line supervisor, unless the supervised employees are professionals. Matter of 
Church Scientology Int'l, 19 I&N Dec. 593,604 (Comm'r 1988). 
Accordingly, we will remand the matter to the Director, who should request any additional evidence 
deemed warranted to address the deficiencies noted with respect to determining whether the 
Beneficiary would be employed in a managerial or executive capacity within one year. 
IV. CONCLUSION 
Based on the foregoing discussion, although the Director's decision will be withdrawn, the evidence 
of record as presently constituted does not establish the Bene:fjciary's eligibility for the benefit 
sought. Accordingly, we will remand this matter to the Director for further action and entry of a new 
decision. 
ORDER: The decision of the Director, Vermont Service Center, is withdrawn. The 
matter is remanded to the Director, Vermont Service Center, for further 
proceedings consistent with the foregoing opinion and for the entry of a new 
decision. 
Cite as Matter ofE-S-USA, Inc., ID# 7869 (AAO Sept. 15, 2016) 
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